Is post-arrest silence enough to stop police questioning?

You are in custody, are read your Mirandarights, and want to invoke your right to remain silent. So you
remain silent. Have you actually invoked the privilege against
self-incrimination, or can police officers continue to question you?

The U.S. Supreme Court considered this situation in a 2010
decision, Berghuis v. Thompkins. (560
U.S. 370 (2010).) In that case, two officers provided the suspect with the Miranda warnings and interrogated him
about a fatal shooting. During the three-hour interrogation, the suspect sat
mostly silent. He never said that he wanted to remain silent, didn’t want to
talk to the police, or wanted a lawyer. Toward the end of the interview, the
officers asked him, “Do you pray to God to forgive you for shooting that
boy down?” The suspect answered, “Yes.” He later moved
to suppress his statements during the interrogation.

Is Silence Enough?

The Court
held that the defendant didn’t invoke his right to remain silent by being
silent during the interrogation. It said that, to invoke either that right or
the right to counsel, a suspect must do so unambiguously. It also said that the
police don’t have to end an interrogation or ask questions to clarify whether
the suspect wants to invoke the Miranda rights
if the suspect says nothing or makes an “ambiguous or equivocal” statement. (For
related reading, see Miranda:
Claiming the Right to Counsel.)

To the Supreme Court, the suspect would
have enforced his right to end police questioning by saying that he wanted to
remain silent or didn’t want to talk. But the Court determined that he waived his right to
remain silent. The facts suggested that he understood the Miranda warning, and that he nevertheless chose to
speak—eventually. To the Court, the response to the question about praying for
forgiveness showed a “course of conduct indicating waiver of the right to
remain silent.” (The Court said that the suspect’s “sporadic answers”
throughout the interview before the answer to the prayer question supported
this conclusion.)

So,
under Berghuis v. Thompkins, the
police may continue to interrogate a suspect who has received the Miranda warning and hasn’t clearly
invoked her rights—even if she hasn’t yet waived them.

Situations Vary

The Supreme Court sets the standard when it comes to the
federal Constitution, but states are free to interpret their own constitutions
to provide defendants more rights. So, the law may vary somewhat depending on
where your case is. For that reason, among many others, it's wise to consult a knowledgeable
criminal defense lawyer if you’ve been arrested.